Introduction

This memorandum examines the use of Cayman Islands off-balance
sheet financing structures. There are several types of transactions
that would call for an off-balance sheet structure, the two most
common of which would be structured finance transactions and asset
finance transactions. The off-balance sheet structure is designed
to isolate the underlying assets from the control, and hence the
bankruptcy risk, of third parties (eg the originator in a
securitisation transaction or the airline in an aircraft finance
transaction).

Structured Finance Transactions

The essential element of a structured finance transaction is the
conversion of certain assets into marketable securities. Typically
a Cayman Islands' special purpose vehicle
("SPV") will be set up to purchase an
asset (or pool of assets). The SPV funds the purchase of such asset
by the issue of notes or preference shares
("Securities"). The asset (or pool of
assets) acquired by the SPV will generate a cash flow which is used
to pay interest on the Securities. The payment obligations of the
SPV under the Securities will be secured by the purchased assets
and the accompany cash flow. The arranger will also use part of the
proceeds of the issue of the Securities to pay all fees and
expenses on behalf of the SPV and the SPV will receive a small fee
in order to establish it has generated a corporate benefit for
itself. Ultimately, the redemption proceeds of the underlying
assets (or occasionally the sale proceeds) are used by the SPV to
redeem the Securities upon maturity.

Asset finance transactions

In asset finance transactions, a typical structure involves a
SPV being set-up as the owner of the asset which may be aircraft,
vessels or machinery. The SPV will fund its purchase of the asset
by obtaining loans from commercial banks or funding supported by
export credit agencies and will lease the asset to an operator (eg
airline or leasing company). The lease rental payments received by
the SPV will be utilised to make principal and interest payments on
the loans. As security for the loans, the SPV will grant mortgages
or charges over the acquired asset and any related contractual
rights (eg insurance policies or warranty agreements for the
assets) in favour of the financiers. To enhance the financier's
position, share security will often be granted by the
shareholder(s) of the SPV. The SPV may be structured as either
"off-balance sheet" as described below, or
"on-balance sheet" where the SPV is set up as a
subsidiary of the operator or other parties to the transaction.

Setting up the Off-balance Sheet Structure

The SPV will typically be an 'orphan' company to ensure
the assets of the SPV will not appear on the balance sheet of any
party to the transaction. This is accomplished by issuing the
shares in the SPV to a Cayman Islands' trust company to be held
in its capacity as trustee of a Cayman Islands' trust (the
"Share Trustee"). The trust is typically
a charitable or purpose trust created pursuant to a declaration of
trust executed by the Share Trustee. The assets of the trust (ie
the right to receive the ultimate surplus on the winding-up of the
SPV by way of distribution from the SPV) will be held by the Share
Trustee on behalf of the charities in the case of a charitable
trust, or the beneficiaries or specified purpose in the case of a
purpose trust.

The Share Trustee administers the trust and holds the legal
title to the trust assets (principally the issued share capital of
the SPV). Typical powers or discretions included in a Cayman
Islands' SPV charitable or purpose trust would restrict the
Share Trustee from disposing of shares in the SPV or winding up the
SPV for the duration of the transaction.

As an alternative to using a charitable trust, a statutory
purpose trust can be used (known as a 'STAR trust'). This
can be for pure purposes or a mix of purposes and beneficiaries.
The rights of beneficiaries under common law trusts are given to an
'enforcer' by statute and an interested counterparty to the
transaction may act as the enforcer of the trust, or a third party
enforcer, unrelated to the transaction could be approved.

Upon the expiration of the transaction, the trust will terminate
and the trust property (namely the net asset value of the SPV,
which will be the issued share capital and any transaction fees
earned by the SPV net of its expenses) will be distributed by the
Share Trustee to the beneficiaries.

SPV Management

In a typical transaction, the SPV will enter into an
administration or management agreement with the trust company to
provide administrative services for the SPV. This agreement will
set out the services to be provided by the administrator to the
SPV, which usually includes the provision of the directors and
officers (such as a secretary) of the SPV and the services of the
Share Trustee to the charitable or purpose trust.

In certain circumstances, the agent and trustee of the
Securities issued by the SPV in structured finance transaction (the
"Note Trustee") or the agent and trustee
under the loan in an asset finance transaction (the
"Security Trustee") may be a party to
the administration agreement and will take covenants from the
administrator in respect of the business and management of the SPV,
which the Note Trustee or Security Trustee can enforce directly.
The administration agreement will provide that the administrator
will carry out all necessary day-to-day administration of the SPV
to ensure that it complies with all applicable rules and
regulations of the Cayman Islands. The Share Trustee will be
required (in its capacity as the registered holder of the issued
shares of the SPV) to give covenants to the Note Trustee or the
Security Trustee to ensure the trust conforms to the transaction,
for example, that the Share Trustee does not give any directions to
the directors of the SPV (other than as required to carry out the
day-to-day administration referred to above) or to take any other
steps to increase the issued share capital of the SPV, sell,
transfer or create a security interest over any of the issued
shares in the capital of the SPV (except as may be contemplated by
the relevant transaction documents), or amend or vary in any way
whatsoever the provisions of the memorandum of association and
articles of association of the SPV, without first obtaining the
consent in writing of the Note Trustee or the Security Trustee.

The memorandum of association of the SPV may be drafted to
restrict the business of the SPV to the activities specifically
contemplated by the transaction documents.

Parties to any transaction documentation must be aware that any
attempt to assert too much control over the SPV risks undermining
the trust structure. The result may be that the SPV is regarded as
a nominee or agent of a party to the transaction or as a controlled
foreign company of a party to the transaction, under the laws of a
foreign jurisdiction. The extent of any involvement should
therefore be the subject of legal and tax advice in the relevant
jurisdiction so as to ensure that the position of the relevant
parties is not prejudiced by the proposed structure.

Advantages of using the Cayman Islands

Flexibility of Relevant Legislation

Cayman Islands' laws are essentially based on the English
common law, so the central issues of corporate power,
directors' fiduciary duties, corporate personality, limited
liability and corporate benefit are substantially the same as the
position under English common law.

At the same time, Cayman Islands' commercial legislation
benefits from being much less cumbersome in many of the areas that
have caused considerable difficulty and uncertainty under the
corresponding English statutes, for example:

The Companies Law (as amended) of the
Cayman Islands (the "Companies Law")
provides that shares are redeemable not only out of profit but
also, subject to some limited solvency tests, from the credit
balance on the share premium account enabling an equity instrument
to have much of the economic substance of debt.

Under English law it is unlawful for
a company to directly or indirectly provide finance for the
acquisition by a third party of its own shares, but financial
assistance in the Cayman Islands is not of itself unlawful.
However, the directors must simply ensure that the transaction is
demonstrably for the material benefit of the company.

No requirement under the Companies
Law to file audited accounts (unless they are required to do so
because, for example, they are licensed or registered under
legislation governing mutual funds, trust companies, banks,
administrators etc.).

Tax issues

It is key in structured finance transactions and asset finance
transactions that there is no tax leakage. The size of these
transactions means that a small number of basis points of tax can
amount to a large tax charge. Tax leakage can arise because there
may be corporation tax in the jurisdiction in which an SPV is
incorporated or where it is deemed to be doing business.
Withholding taxes may be payable on payments made or received by an
SPV.

In the Cayman Islands, there are no corporation taxes on any
company carrying out either domestic business or offshore business.
The use of Cayman Islands' administrators means that SPVs are
centrally managed and controlled in the Cayman Islands, which helps
onshore tax counsel gain comfort that the SPV will not be taxable
in the relevant onshore jurisdiction, except in certain cases where
the SPV is designed to be tax resident in a particular taxing
jurisdiction.

Additionally, in relation to payments made by an SPV there is no
tax withheld by the Cayman Islands' Government on any payment
of principal or interest. This is of great benefit in simplifying
the basis and structure of any transaction.

Stamp duty arises in the Cayman Islands where the relevant
instrument is signed in or physically brought into the Cayman
Islands after signing. Accordingly documents are typically executed
by power of attorney outside the Cayman Islands.

Other Advantages

The lack of direct taxes in Cayman is only one of the advantages
of the Cayman Islands SPV. Others include:

In structured finance or asset
finance context, there are generally no relevant restrictions on
the business an SPV can do from the Cayman Islands, for example, it
can lend, borrow or issue debt securities without any requirement
to become licensed as a bank.

Setting up an SPV in the Cayman
Islands is flexible and quick. A Cayman Islands' SPV can be set
up in as little as 24 hours which can be considerably quicker than
in other offshore jurisdictions where there can be a need for an
'in principle' consent from the local regulator which can
slow down the process.

The Cayman Islands remain relatively
inexpensive and the set up costs for SPVs in the Cayman Islands are
still low. Fees payable to the Cayman Islands Government upon
incorporation and annually thereafter are based on the SPV's
authorised share capital, and currently range from US$854 to
US$3,131. In the vast majority of transactions, the SPVs will have
an authorised share capital of no more than US$50,000 and therefore
the fees payable will be at the bottom end of this range.

There is no specific regulation of
debt issues unless they are listed on the Cayman Islands Stock
Exchange.

There are no foreign exchange
controls in the Cayman Islands. As such, money and securities in
any currency may be freely transferred to and from the Cayman
Islands.

As a matter of Cayman Islands law, a
true sale will remove the underlying asset pool from the
originator's bankruptcy estate and it is only in very specific
cases that the separate corporate personality of a SPV will be
ignored so as to allow creditors access either to the SPV or its
shareholders. Most of these cases involve fraud. It is essential to
ensure that there are adequate corporate formalities for the SPV,
so that there is no risk of it being treated as a sham or an agent
of the originator. Essentially this requires that the job of
administering the SPV is handled professionally, by competent
administrators who understand the commercial rationale and the
legal structure of the transaction and that none of the transaction
parties attempt to exert an unacceptable level of control over the
SPV and its directors.

It is sometimes a listing requirement
for the accounts of the SPV to be audited prior to the listing of
Securities on a stock exchange, and thereafter one of the
continuing obligations of the SPV will be to perform an annual
audit. To this end, the major accounting firms are well represented
in the Cayman Islands, offering full auditing services and are all
experienced in acting for SPVs in such circumstances.

The Securities issued pursuant to any
of the transactions outlined above are often rated by the leading
international rating agencies to increase their marketability. The
rating of a transaction will usually fall to the weakest link in
that transaction and in no event can it exceed the sovereign
ceiling of the various jurisdictions where the parties are
incorporated. Accordingly, the status of the Cayman Islands as a
United Kingdom Overseas Territory means that the sovereign ceiling
for the Cayman Islands is high. This is a distinct benefit for
transactions using an SPV based in the Cayman Islands.

Having been recognised as an
"approved organisation" by the London Stock Exchange
since 1999, the Cayman Islands Stock Exchange
("CSX") was designated as a recognised
stock exchange by the board of the UK Inland Revenue. Eurobonds
listed on CSX now benefit from the quoted Eurobond exemption for
withholding tax purposes. This means that the CSX can compete with
stock exchanges such as Luxembourg and London.

In the context of aircraft financing,
the Convention on International Interests in Mobile Equipment and
the associated Protocol to the Convention on International
Interests in Mobile Equipment on Matters Specific to Aircraft
Equipment (collectively, the "Cape Town
Convention") came into effect in the Cayman Islands
on 1 November 2015, in line with its entry into force in the United
Kingdom on the same date. The Cape Town Convention provides for an
internationally recognised system of "international
interests" to be created and registered, and standard remedies
in a default scenario giving creditors certainty as to the
likelihood of being able to recover the aircraft, thereby further
enhancing the desirability of using a Cayman Islands entity for
aviation finance.

The Cayman Islands SPV

Key Features

An SPV is usually incorporated as an exempted company under the
Companies Law. As such, the SPV has a number of special
features:

No government authorisation or
licences are required to incorporate an SPV.

The SPV is free from any form of
income tax, capital gains tax or corporation tax in the Cayman
Islands, and no Cayman Islands' withholding tax is imposed on
any of its cash flows.

SPVs with exempted company status can
obtain an undertaking from the Cayman Islands Government that they
will remain tax-free for a period of 20 years (which can be
extended to 30 years if the particular transaction requires
it).

Incorporating a Cayman Islands SPV

The initial filing requirements are straightforward:

An exempted company must have one or
more shareholders and directors (which may be an individual, a
corporation or other legal person) and neither is required to be
resident in the Cayman Islands.

The SPV must have a register of
shareholders at its registered office or at some other place
notified to the Registrar of Companies. It is not available for
inspection by the public. Cayman corporate services providers must,
however, collect beneficial ownership information on all companies,
and such information may be made available where requested by
certain domestic and international governmental authorities.

The SPV must have a registered office
in the Cayman Islands, but there is no requirement that it hold any
meetings of the directors in the Cayman Islands.

Other meetings including
shareholders' meetings can also be held anywhere in the world
and do not have to take place in the Cayman Islands.

On an on-going basis the annual
reporting requirements are also minimal and simply consist of a
statement signed by the company secretary or a director that the
company has conducted its operations mainly outside the Cayman
Islands.

Bankruptcy remoteness – protection against insolvency
risks

For Cayman entities, the general criteria applied by rating
agencies to ensure sufficient protection against both voluntary and
involuntary insolvency risks would be:

The SPV must be insulated as far as
possible from the insolvency of the other transaction parties,
particularly the originator.

The SPV's business must be
restricted to activities which ensure a sufficient cash flow to pay
the rated securities.

Non-petition language must be
included in agreements between the SPV and its creditors, together
with limited recourse language which is effective under Cayman
Islands' law in limiting a creditor's right to petition as
an unpaid creditor.

The SPV is usually restricted from
amending its memorandum and articles of association without prior
written notice to the rating agencies. This ensures that while the
rated securities are outstanding, the bankruptcy remote status of
the SPV will not be undermined by any merger or consolidation of
the SPV. Generally this is dealt with in contractual covenants
given by the SPV, rather than the provisions in the SPV's
articles of association, but it should be noted that the amendment
of the articles of association is within the control of the voting
shareholders of the SPV. As a result, in a typical off-balance
sheet arrangement, the Share Trustee agrees with the Note Trustee
that it will not do anything to cause the SPV to breach its
contractual covenants.

The SPV is usually required to be an
independent entity in order to avoid substantive consolidation of
the SPV and its assets with those of its parent or other
affiliates. In practice, for a wholly off-balance sheet entity
which is wholly-owned by a Share Trustee, the rating agencies will
accept an opinion from Cayman Islands' counsel that the SPV
will not be a beneficially owned subsidiary of the Cayman
Islands' trust company and that in any liquidation of the
Cayman Islands' Share Trustee the liquidator will have no claim
against the property of the SPV.

The SPV is required to create valid
and enforceable security interests over its assets in favour of the
Note Trustee or the Security Trustee.

All of the above requirements can be easily satisfied under
Cayman Islands law using a SPV.

Granting of Security

In most off-balance sheet financings, security is granted over
the underlying asset by the SPV in favour of the Note Trustee or
Security Trustee.

In general, no filings are required in respect of mortgages,
charges or security interests under the laws of the Cayman Islands
in order to ensure the validity or enforceability thereof or to
regulate their ranking in point of priority. However, each company
is required to maintain its own register of mortgages and charges
and is under a statutory obligation to register details of any
security granted by it over its assets in such register.

The priority of competing security under Cayman Islands law
depends upon the application of the conflict of law rules but, in
general terms, these look to the law governing the security
agreement and the law of any agreement creating the asset over
which the security has been taken or the law of the place where the
asset is situated.

Insolvency in the Cayman Islands: A Creditor Friendly
Jurisdiction

Cayman Islands' insolvency law is recognised as being
creditor-friendly. Some of the factors contributing to this
are:

The Cayman Islands does not have any
system of corporate rehabilitation such as the English
'administration' procedure or US Federal Chapter 11
proceedings where a debtor can effectively 'freeze' the
rights of creditors including the creditors' rights to enforce
security interests.

There is no concept of automatic stay
of proceedings. Cayman Islands' law does not prevent secured
creditors enforcing their security in the liquidation of an
SPV.

Cayman Islands fraudulent preference
rules only apply when a disposition is made with a view to
preferring one creditor over another. It is not enough that an
asset or payment was made in circumstances which resulted in one
creditor losing out.

There is no concept of substance over
legal form in the Cayman Islands. This means that heavily
subordinated debt, long term, and perpetual debt would continue to
be treated as debt and would benefit from the favourable treatment
given to creditors rather than being treated as equity. Similarly,
participating debt is not regarded as equity for Cayman Islands
purposes even though it can have most of the characteristics of
equity.

Netting and set-off arrangements are
recognised by express Cayman Islands' statutory provisions and
will be enforced both pre and post insolvency, subject to them
being effective as a contractual matter under the governing law of
the contract in which they are contained.

Contractual subordination is
recognised by express statutory provision subject to it being
effective as a contractual matter under the governing law of the
contract.

Cayman Islands Steps For Setting Up An Off-Balance Sheet
Structure

Step One - Incorporation

Information required:

Name (and alternate(s) in case first
choice not available).

Authorised and issued share
capital.

Registered office in the Cayman
Islands.

Step Two - Set up

Information required:

Share trustee.

Names and addresses of directors and
officers, if any.

The first board meeting at which the directors are appointed and
the shares issued to the share trustee is usually held shortly
after the SPV is incorporated.

Step Three - Declaration of Trust and Administration
Agreement

The declaration of trust is usually signed several days before
the transaction signing date in conjunction and must be signed
before any transaction documents are signed, to ensure the SPV is
an orphan when the transaction is entered into. The administration
agreement can be signed on or before the closing date.

Step Four - Transaction Board Minutes, Power of Attorney
and Legal Opinion

Once drafts of the transaction documentation have been received,
drafts of the board minutes, any necessary power of attorney and
opinion (if required) can be produced. The board meeting of the SPV
is held, the minutes signed and the power of attorney issued,
generally before the closing date.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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